Statutory Interpretation in the Era of OIRA

The Article is a case study regarding a rule governing cooling water towers for power plants promulgated pursuant to the Clean Water Act ( CWA ). It analyzes the history of the Office of Information and Regulatory Affairs ( OIRA ) within the Office of Management and Budget ( OMB ), and its influence in compelling the Environmental Protection Agency ( EPA ) to conduct cost-benefit analysis of all regulations. It argues that the EPA should not receive Chevron deference since it has acted illegally by interpreting the CWA not as a technology-based environmental law, but instead as a cost-benefit law

A Case Study in the Superiority of the Purposive Approach to Statutory Interpretation: \u3cem\u3e Bruesewitz v. Wyeth \u3c/em\u3e

This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation. For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common-law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act. Despite these Justices’ common approach to statutory interpretation, they reached diametrically opposite conclusions in opinions that dissected the statutory language and quarreled over the meaning of “even though” and “if” clauses. In contrast, Justice Breyer employed a purposive or “purposes and objectives” approach to statutory interpretation. Rather than obsessing over the meaning of each and every phrase, Breyer looked at Congress’s goals in passing the Act. He recognized that Scalia’s conclusion was correct, not because of the supposedly “plain” meaning of specific language, but because this interpretation was the only one that enabled the alternative compensation system to function as Congress envisioned. Other scholars have analyzed Bruesewitz as a preemption case, but despite statutory interpretation’s inherently decisive role in express preemption cases, this is the first Article to highlight Bruesewitz as an illustration of the emptiness of textualism

Statutory interpretation: New comparative dimensions

Horst Klaus Lück

Protean Statutory Interpretation in the Courts of Appeals

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia. We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields. We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Court of appeals judges use dictionaries far less relative to legislative history than do the Justices; we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. In addition, the relative frequency of dictionary usage between the two court levels varies considerably depending on the subject area and the type of dictionary (general or legal). With respect to relative frequency for legislative history, the Supreme Court, far more than the circuit courts, invokes the record of changes in statutory text—either modified over multiple Congresses (statutory history) or developed in successive preenactment versions of a bill (drafting history). This “vertical history” is apparently more attractive, or less unattractive, to textualist Justices than is traditional legislative history commentary such as committee reports. More broadly, circuit courts regularly use legislative history to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value. For both dictionaries and legislative history, the eclectic approach of the appeals courts differs markedly from the Supreme Court’s more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the Justices’ interaction with their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court’s current approach, which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis

Approaches to Statutory Interpretation and Legislative History in France

The study investigated potential effects of the presentation order of numeric information on retrospective subjective judgments of descriptive statistics of this information. The studies were theoretically motivated by the assumption in the naive sampling model of independence between temporal encoding order of data in long-term memory and retrieval probability (i.e. as implied by a "random sampling'' from memory metaphor). In Experiment 1, participants experienced Arabic numbers that varied in distribution shape/variability between the first and the second half of the information sequence. Results showed no effects of order on judgments of mean, variability or distribution shape. To strengthen the interpretation of these results, Experiment 2 used a repeated judgment procedure, with an initial judgment occurring prior to the change in distribution shape of the information half-way through data presentation. The results of Experiment 2 were in line with those from Experiment 1, and in addition showed that the act of making explicit judgments did not impair accuracy of later judgments, as would be suggested by an anchoring and insufficient adjustment strategy. Overall, the results indicated that participants were very responsive to the properties of the data while at the same time being more or less immune to order effects. The results were interpreted as being in line with the naive sampling models in which values are stored as exemplars and sampled randomly from long-term memory

Riley v. Northern Commercial: Commercial Rationale Triumphs Over Statutory Interpretation

Earlier studies point at that the notion of working in a project brings with it expectations on several aspects of the work situation, expectations that are institutionally given by project theory and practice and re-constructed by the project workers in interaction. At the same time, working by projects and re-constructing organisational and institutional norms on how projects should be, they also successively constructed an image of themselves in relation to these norms. This points at that not only are individuals reinforcing established notions on project work while working by projects – they also at the same time construct their own identities, reinforcing notions about themselves as professional, committed and structured enough to endure the hardships of project work. In other words, a project is here seen as a process of co-construction of the project form and of project worker professional identity. In this paper, we will thus analyse how people in project-based operations socially construct projects and individual identities – i.e. what happens when something is labelled a project and/or a project-based firm. The analysis of the interviews from two theatres indicates that projects and project-based operations are co-constructed with individual identities in several ways simultaneously,  hrough discourses that may look internally consistent but not always easy to combine with each other. Even though most producers, directors and stage managers at the two theatres are most familiar with Gantt charts, project goal structures etc, they are not actively promoting Project Management as a distinct competence of neither themselves nor the organization. What they do promote is still a modernist notion of professionalism that is closely linked to the project form of work organization. What is co-constructed is a system of inter-subjectively held beliefs linking organizational poverty, legitimacy and success to individual identification with what are highstandard artistry, organizational loyalty and self-fulfilment. The single projects become arenas and critical incidents for such co-construction, for yet another confirmation of the current development or for experimenting with other forms for theatre production project work.QC 20111130</p

Statutory Interpretation and Constitutional Legislation

Considers whether UK legislation that is identified as being "constitutional" should be interpreted in a special way and, if so, what interpretative techniques should be used. Discusses the approaches used to interpret ordinary legislation and how constitutional provisions are interpreted in other jurisdictions. Examines the House of Lords judgment in Robinson v Secretary of State for Northern Ireland on the correct interpretation of the provisions of the Northern Ireland Act 1998 on the election of the First Minister and Deputy First Minister of the Northern Ireland Assembly.This is the author's accepted manuscript and will be under embargo until the 30th of June 2015. The final version is published by Sweet & Maxwell in Law Quarterly Review (http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=7116&recordid=473)

Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation

The usefulness of legislative history has been brought into question concerning how judges interpret the intent of legislation. The structure of the legislative process is examined in order to identify how legislators solve the problem of instability of majority rule